In re Ligget

Haynes, C. B. F. Ligget, having been adjudged an insolvent debtor upon the petition of his creditors, filed a petition in the superior court asking to have set apart as a homestead lots 1, 2, 3, 4, 9, and 10 of block 2, range D, of the town of Davisville, in Yolo county. The assignee appeared and contested the petition as to a portion of the property sought to be set apart.

Findings were filed by the court, from which it appears that prior to the proceedings in insolvency the wife of petitioner caused a declaration of homestead to be filed upon all of said property; that at the time of making and filing said declaration of homestead, and at the time of the hearing of said petition, the said petitioner with his wife and family resided on lot 3, upon [353]which their dwelling-house was situated; that all of lots Nos. 2, 3,4, 9, and 10, and a strip across the rear end of lot No. 1 of twenty feet, more or less, were used in connection with and as a part of said homestead, but that no part of said lot No. 1, except the said strip, was ever used in connection with or as a part of said homestead; that at the time of the said making and filing of the said declaration of homestead there was, and now is, upon the front part of said lot 1 a dwelling-house and appurtenances thereto, and that said lot 1, except said strip across the rear end thereof, is separated from the remainder of said premises by a fence, and had been rented by said petitioner at a monthly rental of about eight dollars, but had not been rented since the filing of said homestead declaration, and that petitioner had never used said portion of said lot 1 except to rent it. The court further found that said lot 1 is suitable for a homestead, as is also the remainder of the said premises, including the said strip off the rear end of said lot 1.

The court thereupon made an order setting apart to the petitioner all of said property except that portion of lot 1 "which was inclosed with the dwelling upon it, and which had been theretofore occupied by a tenant, and the petitioner appeals from so much of said order as refused to set apart to him as a homestead the whole of lot 1 with the other property.

Appellant seems to rely upon the fact that his wife included the whole of the property in her declaration of homestead, and that therefore the homestead so declared upon must be set apart under the statute. In this the appellant is mistaken. Section 1237 of the Civil Code provides: “ The homestead consists of the dwelling-house in which the claimant resides, and the land on which the same is situated selected as in this title provided.”